Friday, September 04, 2009

Nesson responds to critics of his Tenanbaum strategy

Charles Nesson has responded to critics of his litigation strategy in the Tenenbaum case. Some highlights.

"this trial was not an exercise in getting joel off the hook...

starting from scratch the fair use issue now looms as a fundamental question in the allocation of function between judge and jury as providing a limitation in wisdom to the expansive power of copyright, so let them doubt, then consider, then be convinced...

there are two questions: first, when, if ever (and i say never) did congress decide that draconian damages against noncommercial consumers was the appropriate response to peer-to-peer file sharing? second, reached only if the answer to the first requires it, would be whether the power to impose this damage at the unconstrained behest of the copyright industry imposed upon individual by civil process (thereby bypassing the protections afforded criminal defenants) with no attendant compensatory component, no proof of actual damage caused by the defendant, purely for deterrence of conduct involving no trespass is unconstitutional."

There are some important issues to be addressed in the case as Prof. Nesson says and it will continue to be an interesting one to watch.